Recovery Racing III, LLC v Tambini

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Recovery Racing III, LLC v Tambini 2012 NY Slip Op 31329(U) April 24, 2012 Supreme Court, Nassau County Docket Number: 014648/11 Judge: Randy Sue Marber Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER TRIAL/IAS PART 14 JUSTICE RECOVERY RACING III , LLC D/B/A FERRRI- MASERATI OF LONG ISLAND Index No. : 014648/11 Motion Sequence... Motion Date... 03/09/12 Plaintiffs -against- JOSEPH J. TAMINI Defendant. Papers Submitted: Notice of Motion...................................... Memorandum of Law............................... Affirmation in Opposition........................ Memorandum of Law......... ......... ............. Reply Memorandum ofLaw..................... Upon the foregoing papers , the motion by the Defendant, Joseph J. Tambini seeking an Order , pursuant to CPLR 3211 (a) (7), dismissing Plaintiffs complaint for failure to state a cause of action is determined as hereinafter provided. 3211 (a) (7) requires this Court Insofar as a motion made pursuant to CPLR to accept as true the allegations of the complaint (Guggenheimer v. Ginzburg, 43 N. 268 275 (1977)), the underlying facts are as follows: The Defendant , Joseph Tambini (hereinafter " Tambini" ), was employed by the [* 2] Plaintiff, Recovery Racing III , LLC D/B/A Ferrari Maserati of Long Island (hereinafter Ferrari" ) from December 15 2008 until September 7 title was "Pars Manager " the responsibilities of 2011. The Defendant, Tambini' sjob which Ferrari described as liaison to Ferrari' s wholesale equipment and parts purchasers. During this period , on or about November 2 , 2010 , Tambini was given an employment handbook containing employment practices, procedures and rules pertaining to employee conduct. Pages 72 and 73 of this employment handbook entitled Acknowledgment" , seeks assent from the employee to a summar of the pertinent parts of the handbook. The acknowledgment leaves two spaces for the employee to sign and date the document. Of note is a bolded sentence in the proprietar information , acknowledgment regarding Ferrari' solicitation of customers , non-competition , and reimbursement of training expenses under " certain circumstances. The employee handbook imposes several rules on employees after their termination of employment. Employees are prohibited from soliciting or accepting business from any customers of Ferrari for eighteen months following the expiration of employment. Employees are prohibited from sellng, leasing or servicing any new Ferrari or Maserati vehicles for eighteen months within two hundred miles ofF errari' s location. Employees are prohibited from inducing any customer of Ferrari to patronize any entity which is in the business of sellng or servicing Ferrari or Maserati vehicles through the use of records or data to which they had access during employment. Former employees may not use , disclose, [* 3] reproduce or retain any of Ferrari' s proprietary information or Confidential Customer Information after employment expires. The Defendant, Tambini resigned from Ferrari on or about August 24 2011 and subsequently began working as "Pars Connecticut. Miler Motorcars Manager" of Miler Motorcars in Greenwich sells and services Ferrari and Maserati vehicles. Miler Motorcars has a principal place of business in Greenwich and a satellte outlet in Roslyn New York, which are approximately fort- five miles away and ten miles away from Ferrari' location , respectively. The Plaintiff has pled three causes of action: (1) breach of contract; (2) unfair competition; and (3) breach of fiduciary duty. physically took , The Plaintiff claims that the Defendant misappropriated , recorded and/or memorized Confidential Customer Information and other proprietary information from Ferrari' s computer and customer fies. The Plaintiff additionally claims that their services , contacts , knowledge ofthe marketplace and historical customer information constitute trade secrets. The Plaintiff asserts that ifthe Defendant were to use this information to divert the Plaintiff s customers and other business to the Defendant's new employer , the Plaintiffwil suffer irreparable harm. The Defendant moves to dismiss all three causes of action under CPLR ~ 3211 (a) (7). The Defendant argues that , since the employment handbook does not constitute a valid contract , no action for breach of contract can be maintained. Also , the Defendant states that there is no allegation by the Plaintiff that the Defendant , Tambini used any of Ferrari' [* 4] confidential information or trade secrets at Tambini' s new employment. Finally, the Defendant contends that , not having used any of Ferrari' s confidential information or trade secrets , he cannot be said to have breached any fiduciary duty to Ferrari. The Defendant claims to have never assented to the terms ofthe November 2 2010 employee handbook. Additionally, the Defendant claims to have received no consideration for agreeing to additional terms of employment , and therefore no valid contract exists pertaining to the employee handbook. When a part dismiss a complaint pursuant to CPLR ~ 3211 (a) (7), moves to the standard is whether the pleading states a cause of action, not whether the proponent of (Trotta the pleading has a cause of action D 'Agostino 21 A. 2d 60 (1 st Dept. v. Ollvier 91 A. D.3d 8 (2 Dept. 2011); Foley 1964)). In considering a motion to dismiss pursuant CPLR ~ 3211 (a) (7), the court should accept the facts as alleged in the complaint as true, accord Plaintiffs the benefit of every possible favorable inference (Trotta whether the facts alleged fit within any cognizable legal theory Vitarelle 65 A. D.3d 1034 (2 , and determine only supra; Vitarelle Dept. 2009)). The Defendant' s argument as to the Plaintiffs first cause of action , breach of contract , is misplaced. The elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract , (2) the Plaintiff s performance under the contract (3) the Defendant's breach of that contract L.P. v. , and (4) resulting damages AJWQualifedPartners 83 A. D.3d 804 (2 Dept. 2011); see also (Palmetto Partners JP Morgan Chase [* 5] V. J.H Elec. Of New York, Inc. 69 A. D.3d 802 (2 Dept. 2010)). The Defendant's claim that no valid contract existed is irrelevant as to whether the Plaintiff alleged sufficient claims in it' s pleadings to constitute each element of a cause of action for breach of contract. Here the Plaintiff, Ferrari , alleged that a binding agreement existed , which the Plaintiff, Ferrari performed and the Defendant , Tambini , breached , resulting in damages in " no less than $100 000. 00. " Clearly, all four elements of the "breach of contract" cause of action have been sufficiently pled by the Plaintiff. The Plaintiff s second cause of action is for unfair competition. A cause of action based on unfair competition may be predicated upon the alleged bad faith misappropriation of a commercial advantage belonging to another by proprietar information or 7765577 (N. Sup. 2010); trade secrets (MidAmerica Productions, Inc. Out of Box Promotions, LLC Dept. 2008)). In the instant matter, the Plaintiff, v. v. exploitation of Derke, 2010 WL Koschitzki 55 A. D.3d 575 (2 Ferrari , has alleged the Defendant Tambini' s bad faith misappropriation of Ferrari' s confidential information , and has further outlined specifically what types of information they deem to be proprietar information and/or trade secrets. A cognizable legal theory for unfair competition is apparent from the pleadings. Finally, the Plaintiffs third cause of action is for breach of a fiduciary duty. In order to establish a breach of fiduciary duty, there must be (1) a fiduciary relationship, (2) misconduct by the Defendant , and (3) resulting damages (Kurtzman v. Bergstol 40 A. D.3d [* 6] 588 (2 Dept. 2007)); 1247(A) (N. v. Daughters of Mary Mother of Our Savior Sup. 2011)). Here, again , LaSalle 32 Misc.3d the Plaintiff, Ferrari , has clearly alleged sufficient facts to constitute a cognizable legal theory. The Plaintiff, Ferrari, alleged that the Defendant, Tambini , owed a fiduciary duty to Ferrari regarding his access to Ferrari' confidential customer information. The Plaintiff, Ferrari , further alleged that the Defendant T ambini , breached this fiduciary duty by using Ferrari' s proprietary, confidential information to divert Ferrari' s business to his new employer. Finally, Ferrari alleged that Tambini' misconduct caused damages to Ferrari. Accordingly, it is hereby ORDERED , Plaintiffs complaint for that the motion by the Defendant seeking to dismiss the failure to state a cause of action is DENIED; and it is further ORDERED , that the parties appearing in this action are hereby directed to appear for a Preliminar Conference in this matter , which shall be held on May 10, 2012 at 9:30 a. m. at the courtouse lower level This shall constitute the Decision and Order of this Court. DATED: Mineola, New York April 24 , 2012 ENTERED APR 27 20\2 F\CE COUN,

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